Job Creators Sue Federal Government

Marita Noon is the executive director for Energy Makes America Great Inc. and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). Together they work to educate the public and influence policy makers regarding energy, its role in freedom, and the American way of life.

For years environmentalists have usurped individual private property rights and thwarted economic development. Now, thanks to Oklahoma Attorney General Scott Pruitt, it appears that the job creators may have finally learned something from the extreme tactics of groups, like the Wild Earth Guardians and the Center for Biological Diversity (CBD), which have been using the courts to their advantage by filing lawsuits against the federal government.

On Monday, March 17, on behalf of the state of Oklahoma and the Domestic Energy Producers Alliance (DEPA), Pruitt filed a lawsuit against the federal government, specifically the U.S. Department of the Interior and the U.S. Fish and Wildlife Service (FWS). The lawsuit alleges the “FWS engaged in ‘sue and settle’ tactics when the agency agreed to settle a lawsuit with a national environmental group over the [Endangered Species Act] listing status of several animal species, including the Lesser Prairie Chicken.”

The Lesser Prairie Chicken (LPC) is especially important, as the FWS is required—based on the conditions set forth in the settlement of a 2010 lawsuit—to make a determination, explicitly, on the LPC by March 31, 2014. A “threatened” listing would restrict the land use in the bird’s 40-million-acre, five-state habitat: Oklahoma, Colorado, Texas, New Mexico, and Kansas. The affected area includes private, state, and federal lands—lands rich in energy resources, ranch and farm land—plus, municipal infrastructure, such as water pipelines and electric transmission.

Understanding the negative impact a listing would have, industry (oil and gas, electric transmission and distribution, pipelines, agriculture and wind energy), states, and the FWS have collaborated to develop a historic range-wide plan (RWP) to demonstrate that the LPC and its prairie habitat can be protected without needing to list it. The RWP includes habitat management goals and conservation practices to be applied throughout the LPC’s range. According to a press release about the Oklahoma law suit, the cooperative effort has spent $26 million dollars on the voluntary conservation plan—which would be more than enough to protect restore LPC habitat, as well as to develop an elaborate state-of-the-art LPC hatchery. RWP enrollees are optimistic the FWS can cite the conservation commitment as justification for a decision not to list the LPC as a threatened species.

A DEPA spokesman states: “this designation could disrupt drilling and exploration on hundreds of thousands of very promising oil and gas lands in this part of the country.” The CBD has made no secret of their disdain for oil and gas extraction and has filed many successful lawsuits specifically to block development.

Pruitt says: “the sue-and-settle timelines force the FWS to make determinations without a thorough review of the science. This violates the original statute requiring sound science before listing species.”

Stephen Moore, formerly with the Wall Street Journal, explains: “Under the Obama administration, the feds have entered into a consent agreement with the environmentalists to rush forward a judgment on an unprecedented number of species. A 2012 Chamber of Commerce study found record numbers of such ‘sue and settle’ cases under Obama.” Pruitt adds: “Under President Obama, we have had sue and settle on steroids.”

Political impacts

The “rush” as Moore calls it, is being driven by the desire to get the decisions made under the friendly Obama Administration—which may appease the environmental base while, unwittingly, hurting Democrats in the 2014 elections and handing the Senate to Republicans.

The LPC decision impacts five western states, from which even Democrat Senators, aware of the potential economic impact, sent a letter to the FWS asking to delay listing the LPC as threatened. The next big listing is the Greater Sage Grouse (GSG) with a habitat covering eleven western states. If the LPC is listed, after the groundbreaking efforts to preserve its habitat, there will be no similar cooperation on the GSG. The GSG will surely be listed—triggering a modern Sage Brush Rebellion and costing Democrats the Senate (and some House seats, too).

The Democrats are in a bind. The rushed listings are being forced by the environmental base, which is myopically focused on the anti-fossil-fuel (job-killing) agenda of restricting oil-and-gas development on western lands and isn’t looking at the bigger political consequences.

It appears the decision has been made. Sources tell me that Dan Ashe, Director of the FWS, has called a meeting on Capitol Hill to brief the stakeholders prior to Thursday’s announcement. If he decides to list the LPC, Pruitt’s lawsuit could be just the first shot that ignites the new rebellion pushing states to take control of the lands within their borders.

Kent Holsinger, a Colorado-based attorney specializing in Endangered Species Act (ESA) issues, told me: “State wildlife management is much more efficient and effective than federal listings. Oklahoma and DEPA should be commended for pushing back on these issues.”

The environmentalists are looking at the end, but not the political means.

Power Shift

For CBD, it isn’t even about the science. Its staff page boasts three times as many attorneys as biologists.

In a High Country News interview with CBD co-founder Kieran Suckling, he explains how their strategy was developed through their first “major victory” over the Mexican wolf.

Previously environmental groups had no leverage with the government, other than saying “pretty please.” In the case of the wolf, groups proposed introducing it onto New Mexico’s White Sands Missile Range. The general in charge of the range had no interest. Suckling reports: “The strategy of the wolf coalition was to wait for the general to retire. We decided, let’s just sue instead. It got settled with the Service agreeing to do a wolf study, which led to reintroduction. That was the moment when we looked at it and said, ‘Wow.’ The environmental movement spent a decade going to meetings and demanding action and getting nothing done. They were asking powerful people for something from a position of no power. We realized that we can bypass the officials and sue, and that we can get things done in court.”

Suckling called lawsuits: “one tool in a larger campaign.” He explained: “we use lawsuits to help shift the balance of power from industry and government agencies, toward protecting endangered species. That plays out on many levels. At its simplest, by obtaining an injunction to shut down logging or prevent the filling of a dam, the power shifts to our hands. The Forest Service needs our agreement to get back to work, and we are in the position of being able to powerfully negotiate the terms of releasing the injunction.”

When asked if his lack of a degree in science was a hindrance, he answered: “No” and pointed out that “the professionalization of the environmental movement has injured it greatly.” He added: “I’m more interested in hiring philosophers, linguists and poets. The core talent of a successful environmental activist is not science and law. It’s campaigning instinct.” They operate on emotion, not science.

Sue and Settle

It is these tactics, along with a friendly Obama government, that has led to the “sue and settle” procedure that Pruitt’s lawsuit is hoping to end. The lawsuit is seeking “declaratory and injunctive relief for violations of the ESA.” Moore reports: “The relief is intended to overturn designations of dozens of species added to the threatened or endangered list through the ‘sue and settle’ process.”

The Oklahoma lawsuit asserts: “the Fish and Wildlife Service violated the Endangered Species Act by agreeing in its settlement with Wild Earth Guardians to not consider the statutorily-created ‘warranted but precluded’ category when determining the listing status of the 251 candidate species.” Additionally, the lawsuit states: “the FWS violated the law by agreeing to a truncated timeline to the decision-making process on the listing status of the 251 candidate species, essentially sidestepping the rule making process.”

Pruitt believes that: “because these settlements are taking place without public input, attorneys general are unable to represent the respective interests of their states, businesses, and citizens.” Forbes Contributor Larry Bell agrees: “While the environmental group is given a seat at the table, outsiders who are most impacted are excluded, with no opportunity to object to the settlements.”

Bell describes the “sue and settle” practice—sometimes referred to as “friendly lawsuits”—this way:

“Cozy deals through which far-left radical environmental groups file lawsuits against federal agencies wherein court-ordered “consent decrees” are issued based upon a prearranged settlement agreement they collaboratively craft together in advance behind closed doors. Then, rather than allowing the entire process to play out, the agency being sued settles the lawsuit by agreeing to move forward with the requested action they and the litigants both want.”

In a succinct soliloquy about the LPC and GSG, Fox Business’ Stuart Varney says: “I’ve always been amazed at the ability of a very small, but well-funded, group to get their way using the court system. But, that is what really is happening. The Sage Grouse and the Lesser Prairie Chicken interests are obviously far more important than America’s interest in energy independence.”

Gratefully, Oklahoma Attorney General Scott Pruitt has stepped up to the plate and used the environmentalists’ tactics and filed a lawsuit against the federal government. It will not delay the March 31 deadline for the FWS decision on the LPC, but it could “overturn designations of dozens of species added to the threatened or endangered list through the ‘sue and settle’ process.” It could prevent the unnecessary listing of thousands of other flora and fauna—allowing companies to continue providing the jobs, producing the oil, natural gas, and other commodities such as timber and critical minerals that are so important to America and our energy freedom.